[Vision2020] Hawkins Development

[French]

The following is posted on behalf of Wayne Fox

March 18, 2008

 

 

To:                   Moscow City Councilperson Walter Steed

From:               Wayne A Fox

Re:                   Response to Email on Hawkins Procedure

 

Thank you for expending your time and your response to issues raised by my letter of Monday morning.  This letter is in response to an email from you which reads as follows:

 

Mr. Fox, the statement we have made regarding avoiding costly legal fees comes from information we were given about not mediating or not reaching an agreement in mediation and continuing the appeals.  I have no doubt what you say about had we just dropped the appeals there were not have been the large costs.  Had we done that, however, we believed Hawkins would just drill its wells and taken the water.  Instead we are selling it to them.

 

What no one seems to acknowledge is that the original appeal was filed by the Mayor and the "process" to continue the appeals to mediation was also the Mayor's.  We newly elected officials were lobbied by the Mayor prior to taking office to proceed with the mediation process.  The Hawkins Five, as you label us, were told this was the process and we did the best we could with it; i.e., my analogy of having to jump on a moving train that had been started from an earlier "station" (Mayor and prior council).

 

I have not "lied" to anyone but have attempted to relate the events as I know them.

 

Thank you for your questions and comments,

 

Walter Steed

 

Walter Steed

Moscow City Councilor

 

First of all, thank you for your frank acknowledgement that the city council could have simply dropped the appeals and thus avoided the costs of those appeals, costs of mediation, further attorney fees, etc.

 

I hope that in what follows you do not mind that I will be repetitive, but perhaps I wasn't clear the first time.

 

Let's first address your statement:

 

"Had we done that, however, we believed Hawkins would just drill its wells and taken the water.  Instead we are selling it to them."

 

There are two parts of this statement that form the basis of the large amount of disagreement by the community with decision of the Hawkins Five and part of the community's perception of their integrity, judgment, etc.

 

First, "Instead we are selling it to them."

 

This statement raises several serious questions.  Here are just a few:

 

Why should a city sell water to anyone except its residents?  Doesn't selling water to anyone impose liabilities and obligations on the city?

 

Doesn't selling water to others outside the city limits create a liability problem when conditions might occur that would limit the amount of water available to city residents in the event of a water shortage, whether due to natural or mechanical causes?

 

Why should a city sell water to an out-of-state organization when its previous concerns about water availability and conservation have wrought the enactment of conservation measures such as restricted use of water on lawns (restrictions with which many city residents do not agree, and who are enraged that water they might have been able to use on their lawns will now go to an out-of-state commercial venture)?

 

Why should a city supply a copious amount water from an aquifer known to be undergoing depletion to an out-of-state commercial venture, that should it fail, could leave the city with a huge unpaid bill?  Why would a city take that risk?  Is such a risk-taking venture by a city with an out-of-state entity even within the State of Idaho's statutory framework?  Is there even statutory authority for the city to any services of any kind to an out-of-state private entity?

 

Why should a city sell water outside its limits when it appears that the city cannot by law make a profit on such sales, but only at best break even and then likely incur the possibility of more problems and system-wide maintenance costs?

 

Why should a city sell water to an out-of-state commercial venture which will be in direct competition with city based businesses, businesses whose taxes and patronage helped to build the water extraction, treatment, and delivery infrastructure?

 

Why should a city supply water to an out-of-state commercial venture which will compete with city business, thus making it less expensive for the developer to build than otherwise, and thus less expensive for competing businesses to pay rent in the out-of-state venture, thus making it possible for them to offer lower prices than otherwise*?

 

[*The cost of drilling a new well, creating the pumping, treatment, testing, etc, facilities with its continual required maintenance would be far greater for Hawkins than simply laying a few hundred feet of water main.  Also, the cost to Hawkins for building a sewage disposal facility would be much, much greater than laying a few hundred feet of sewer pipe.]

 

Why should a city sell water to an out-of-state commercial venture competing with city businesses when the result most likely will be a loss of revenue for many city businesses and thus a loss of sales tax and possibly other tax revenue to the State of Idaho, a state with a continual shortage of funds?

 

Shouldn't a city try to help, not hinder city businesses, instead of directly enabling and aiding the development and operation of competing out-of-state businesses**?

 

[**By agreeing to provide water and sewer services to Hawkins, the city council made it more probable that the competing mall will actually be. built.

 

Malls are not developed on "if we build it, they (businesses tenants) will come."  Instead there is a long period of floating the mall proposal and soliciting possible tenants.  Many would-be tenants are reluctant to commit until many of the more difficult issues and problems inherent in developing a large mall, especially in a semi-rural area, are successfully dealt with.

 

By agreeing to provide water and sewer services the city council has removed a large barrier for Hawkins.  Hawkins is now able to tell prospective tenants that the largest and most important infrastructure and environmental barriers have been removed.  Thus, it will now be easier for them to get tenant commitments, and thus the probability is increased that the out-of-state mall competing with City of Moscow businesses will be built -- thanks to the Moscow city council.]

 

I am by far not the only one to be raising questions like those above.  And if you think that some of my prose has been pejorative and provocative, you should hear that of some of the Moscow business people, particularly those likely to adversely impacted by an out-of-state mall that their city council using their tax dollars is helping to enable.

 

 

You state:

 

"we believed Hawkins would just drill its wells and taken the water."

 

Now we get into the area that really stretches city the council's credibility with its residents and others adversely impacted by the council's decision in the Hawkins matter.

 

If the city had simply dropped the appeals and refused to enter into secret, apparently uninformed negotiations via mediation, then Hawkins would have had two choices.

 

The first choice, as you point out, would have been be for Hawkins to drill a well for themselves.  

 

So what if Hawkins had chosen this alternative?  Hawkins would be incurring the expense, the liabilities, etc for water extraction, treatment, and delivery.  The City of Moscow would incur no expenses and would not incur any further liability in this matter.

 

Further, the city council would not have put themselves into the traitorous position of enabling a large amount of out-of-state competition with city businesses, the resulting loss of business and tax revenue, and consequently the loss of the things that such city based business revenue and taxes pay for in the city and the state.

 

The city apparently thinks that by selling water to Hawkins they are somehow able to control or to limit Hawkins's water usage from the regional aquifers.

 

Wrong.

 

If Hawkins expands or even needs more water under its current plans than anticipated, what is to prevent them from having a neighboring/nearby property owner acquire water rights, drill a well, and sell its output to Hawkins?  If Hawkins needs more water than the city can supply, they most likely will find a way to procure it; if no other way can be found, Whitman County has agreed to fund in principle bringing water from Pullman or elsewhere in Whitman County.

 

The second choice, would have been for Hawkins to apply to the City of Moscow to provide water and sewer services.

 

If this had happened then the whole process would have been an open, public process where the comments, wisdom, sentiments, etc of city residents could have been considered.

 

The decision whether to sell water to an out-of-state commercial venture that competes with city businesses is a complex matter.  There are serious and far-reaching economic, financial, legal, public policy, and environmental impacts that need to be addressed.  Much information needs to gathered and evaluated before an informed decision can be made.

 

It is a matter in which all city residents and those impacted by city actions have a stake.  It is not something that should be or even could be done correctly in secret or done in a rush-to-judgment manner with insufficient information.

 

I am speaking from experience.  I have participated in many public processes.  I have been on both sides of the administrative chasm.  I have been an informed, commenting member of the public.  I have also been a county planner in Idaho and a member of semi-public boards such as a volunteer fire association and an economic development organization.

 

Here is one very important lesson I have learned:  No one person or small group of people can think of everything involved in a complex public matter.

 

Many times in hearings and information gathering parts of public processes I have been amazed at what can be learned from the public.

 

Doubtless some of what is heard at public hearings has little cognitive value, save that it is emotional communication about public values.  However even this emotional communication has a role in demonstrating public sentiment.

 

I have many times seen public policy decisions altered, sometimes greatly, by the consideration of comments sometimes from what some might consider the most unlikely sources.

 

If any city councilperson thinks they know more than the collective voices of the public when it comes to complex matters of public policy without first hearing from those voices, then in my opinion that councilperson extremely arrogant, fails to understand the power and processes of representational government, and is seriously delusional.

 

 

Let us now examine your statement:

 

What no one seems to acknowledge is that the original appeal was filed by the Mayor and the "process" to continue the appeals to mediation was also the Mayor's.  We newly elected officials were lobbied by the Mayor prior to taking office to proceed with the mediation process.  The Hawkins Five, as you label us, were told this was the process and we did the best we could with it; i.e., my analogy of having to jump on a moving train that had been started from an earlier "station" (Mayor and prior council).

 

This statement does nothing to change my belief that the present city council must think that city residents and others like myself are rubes that just fell off the potato wagon.

 

A new predominantly new city council is not obligated to continue an unfinished public policy making process in 

thes exact format that its predecessors or the current mayor put into motion.  They have no obligation to "having to jump on a moving train that had been started from an earlier station" as you have characterized it.

 

Far from it.

 

In reality, the new council could have stopped the train, dead cold.

 

The new council had a unique opportunity.  They could have started by simply asking:  "What are all our options at this point?" with respect to the Hawkins matter.  Such a question is one that anyone with all or most of their there wits would have or should have asked.  In fact, it's a question almost mandated by a conscientious councilperson's oath of office and statutory duties.

 

Had the new council asked the simple question, "What are all our options at this point?" they would have discovered that the city's appeals could have simply been dropped, and then they could have let things develop as described above instead of rushing to judgment and making a decision with far reaching consequences without the counsel of public input and without all the necessary information to render an informed decision.

 

Perhaps, the council even did ask the above question.

 

However, what followed was that the new council, in particular, the Hawkins Five, chose to deal very quickly with this complex matter with its far reaching consequences for the community in secret and consequently deal with it without being well informed.

 

The truth:  the new city council whether by tacit agreement with the mayor and/or for their own individual reasons had already decided to provide Hawkins with water and sewer services.  They decided this without having full knowledge of the impacts and without knowing public sentiment.

 

The secret mediation was actually the second secret decision.

 

Most outrageously and arrogantly, the first secret was the decision to provide Hawkins with water and sewer , a decision made prior to and a prerequisite for entering and/or continuing mediation with Hawkins:

 

Daily News, February 8,2008:

 

Krauss and Steed said they decided it was best to go ahead with the mediation.

 

"I went up there to reach a settlement to conclude the Hawkins situation," Steed said.

 

Daily News, March 5 2008, Krauss quoted:

 

"I was under the very strong impression that Hawkins was not going to talk about it any longer."

 

"When you see Jeff DeVoe and his attorney sit back in their chairs and cross their arms and they say (a section of the settlement) stays like it is, that's it, you pretty much understand where they're at."

 

 

To repeat from a previous letter:

 

The consequences, if the council simply withdrew the city's appeal from the Washington administrative agency with a letter costing less than $5.00 to post to all the parties:  no expensive mediation fees, no further attorney fees for the city, no attorney fees due Hawkins.

 

Further and much more important consequences:

 

Having disposed of the administrative appeal, which the Hawkins Five considered ill-advised, without further financial consequences to the city, the council could have then considered an application from Hawkins for water and sewer services.

 

Then the council could have gathered reliable, correctly and carefully researched information about all the consequences of such a proposal.  They could have discussed the matter totally in public.  They could have even held public hearings on such a serious matter with far reaching consequences to learn public sentiment and perhaps consider challenges to the accuracy of some of the information upon which they might base their decision.

 

Instead, the Hawkins Five lied big time and made a sweetheart deal with Hawkins in secret.

 

They purposely excluded the public from any participation and denied the public any opportunity to challenge the so-called factual and/or value bases on which the Hawkins decision was allegedly made.  Then they gave GMAer Steve Busch a serendipitous big present to boot.  In addition they spent city funds lavishly on mediation services and on Peter Scott, a Coeur d'Alene attorney.

 

Refresher:  The Hawkins Five claiming they acted as they did "to avoid attorney fees" was/is simply a lie.  A lie.  A big lie.  And a really stupid big lie.

 

Had the Hawkins Five acted honestly, and this matter was handled openly, legally, and a decision reached after full public consideration, then this whole thing would be a different matter.

 

Even if the decision reached would be the same, the Hawkins Five would not look like sneak-thieves and would not look like they considered themselves immeasurably smarter than those they serve.

 

While a decision reached in an open, and hopefully open-minded, manner might not be acceptable to all, it would not be tainted with dishonesty, gullibility, the odor of secret conspiracy, and arrogance.

 

A decision reached in this open, fact-finding way would not make the Hawkins Five look like arrogant, secretive, omniscient know-it-alls who do not want their wills to be tainted by real facts, and, for God's sake, certainly not by public input and sentiment.

 

And who knows?  Maybe after a full, open, and open-minded consideration of the facts and public sentiment, a different decision might have been reached by the council.

 

 

>From your letters I take it that you are denying the truth of my provocative statement:

 

"Refresher:  The Hawkins Five claiming they acted as they did 'to avoid attorney fees' was/is simply a lie.  A lie.  A big lie.  And a really stupid big lie."

 

Please recall your admission from above:

 

"I have no doubt what you say about had we just dropped the appeals there were not have been the large costs."

 

Let's examine some of the evidence.

 

As recent March 5, 2008 in the Daily News, councilperson Krauss was quoted in an attempt to justify the actions by the Hawkins Five by saying:

 

"Peter Scott, an attorney hired by the city of Moscow who specializes in water issues, recommended taking the settlement to avoid costly litigation over the appeals that Moscow likely would have lost.

 

"We paid a lot of money for his recommendation, and I thought it was probably a good idea to do it," 

 

If the appeals had simply been dropped, as you have graciously acknowledged could have been done, there would have been no costly litigation and its attendant expenses (nor the expense of further mediation and attorney Scott).  Instead there would have been time for a thorough and thoughtful exploration of the entire issue in an open, public manner.

 

Even if the matter was already in mediation, the city could have withdrawn from that mediation at any time that it found that what was offered was not satisfactory enough to be in the best interests of the residents of Moscow or decided that mediation was a mistake in the first place.  Mediation is not binding arbitration.

 

Had councilperson Krauss not made his outrageous statements at such a late date, I would have not been angered to the point of publically entering this fray.

 

>From the same article, more of Krauss's statements:

 

"Krauss said at a forum Tuesday that the actions of company representatives during mediation led him to accept a controversial settlement agreement.

 

"I was under the very strong impression that Hawkins was not going to talk about it any longer."

 

"When you see Jeff DeVoe and his attorney sit back in their chairs and cross their arms and they say (a section of the settlement) stays like it is, that's it, you pretty much understand where they're at,"

 

How gullible and dull-witted can you get?

 

Hawkins had nothing to lose in this whole process.  If no agreement could be reached with the city during this secret mediation (prior to which the city council had already secretly agreed to provide water and sewer service to Hawkins), Hawkins was no further behind than they were from the beginning.

 

Hawkins had no chips in the pot.  Hawkins ran a bold, but obvious bluff and the city council fell for it a first time poker player gambling with a seasoned cardsharp.  Hawkins walked away with the jackpot.  Hawkins's development expenses were reduced significantly and a major barrier to committing tenants-to-be was removed.

 

I think it highly likely that the Hawkins team left the mediation very, very pleased with the outcome and also laughing up their sleeves and the credulity of the city council.

 

Next, councilperson Bill Lambert wrote in a column on February 22, 2008 in the Daily News:

 

"Scott told us litigation would cost hundreds of thousands of dollars with an uncertain outcome. I am not willing to spend tax dollars fighting decisions that are made by the state of Washington and Whitman County. Those thousands of dollars should be spent on streets, sidewalks, and services for our residents. We have already spent thousands of dollars of your money fighting this."

 

Here is the big lie again, manifestly undeniable:  Moscow City Council President Lambert attempting to justify his actions by claiming he was heroically saving city residents hundreds of thousands of dollars.

 

Just more aggravating, condescending bullshit.

 

Not only could the council simply dropped the appeals, but it could have also withdrawn from the mediation process with no harm, no foul, no further expenses of consequence.  A big lie coming from the council president is not likely to enhance the council's credibility with Moscow residents or anyone else.

 

Next, from a posting by on Vision 2020 by councilperson Dan Carscallen:

 

1.  I felt that protracted litigation would have cost hundreds of thousands of dollars.  I would much rather spend that money on paving our gravel streets, building sidewalks, and possibly even investing in the affordable housing fund that was brought forward by Rick Beebe, plus some plans our Affordable Housing Commission is going to bring forward in the future. 

Here is the big lie again, manifestly undeniable.  There was no need for protracted litigation

 

Carscallen further writes:

 

2.  We are going to be able to charge a premium rate for the water.  If Hawkins chooses to buy sewer service, we can charge a premium rate for it as well.  When treated effluent becomes available, we can charge for it as well (the University of Idaho currently uses it for free).  It is my hope that we can take that which we make off of the development and put it into a fund to facilitate the exploration of alternative sources of water. 

I have not researched this myself, but it appears that it would not be lawful for the city to make a profit (which it should not be in the business of doing anyway) or to charge a premium rate to anyone for water outside its normal expenses.  There are serious questions about the legality of providing Idaho water en masse to an out-of-state user.  There are also questions about the legality of the city selling its effluent to Hawkins.

 

At any rate, making a deal in secret without having simple legal questions answered beforehand seems not only arrogant but extremely irrational and foolish.  Such an action, in my opinion, demonstrates a lack of commitment by the council to conscientiously explore issues, demonstrates the lack of exercising critical thinking, and demonstrates a dangerous propensity to act in a very simple-minded manner.

 

The Hawkins matter is one of complexity.  It is not a decision to be taken by "the seat of one's pants."  A careful examination and weighing of correct quantitative and qualitative information is need.  Besides having manifested alarming ineptitude in the Hawkins matter, the totality of the actions by some council members also has exhibited inexcusable mental lassitude, which obviously negates the claim for some councilpersons that "they were doing their best" in this matter.

 

If the time had been taken to conduct this entire Hawkins business in a no-rush-to-judgment, open, public manner, then there would have been time to find the correct answers to all the legal and other questions.

 

Carscallen further writes:

 

4.  I did see this development as an inevitability, since the Whitman County Commissioners are doing all they can to make this happen.  I would much rather see us sell the water to Hawkins, have the control over it, and get paid for it instead of the City of Pullman piping water all the way through the corridor, thereby increasing the chance of further development through there, or allowing Hawkins to drill a well and have no commitment from them regarding conservation.  This will at least slow things down a bit. 

I do not know if the Hawkins mall is inevitable or not.  Given the contingencies involved, I sincerely doubt at this point if anyone on the council knows for sure either.  However, I do not think that the city of Moscow should be using its residents taxes to make that competing-with-local-businesses, out-of-state development more probable.

 

If Whitman County is going to foster development in the corridor, development which will compete directly with Moscow businesses, then Whitman County should pay for the supporting infrastructure, not the City of Moscow.

 

The City of Moscow at worst on behalf of its business community should be neutral, and not be an enabler of competing Whitman County businesses using City of Moscow funds, part of which are collected from Moscow's business community itself.  There are even many in Moscow who think that the city council should not be neutral on these matters, but operate under public policies that are business friendly to the Moscow business community.

 

Carscallen's statement 4 above, reflecting basically a view of all the Hawkins Five, contains other serious fallacies:

 

As noted above, the City of Moscow has no control over the amount of water Hawkins will drawn in total from the aquifer.  It is very foolish to claim otherwise.

 

If Hawkins cannot get enough from the City of Moscow, then they will find a way to get it elsewhere, including piping it in from somewhere in Whitman County.

 

By providing Hawkins with water and sewer and thus saving Hawkins and Whitman County the expense of providing the same, the City of Moscow has made it possible for Whitman County to spend in some way the money originally allocated for infrastructure for Hawkins on other corridor infrastructure by tying it in some way to the Hawkins development.  Hence, Moscow's providing water and sewer to Hawkins has increased the likelihood of further and faster corridor development, not decreased it as councilperson Carscallen claims.

 

 

Thank you for graciously entering this dialog despite my sometimes inflammatory but heartfelt rhetoric, and despite the fact that I am not a city resident.

 

I have taken the time to write this letter to express some of the thoughts held by many in the community who are not only befuddled and angered by the Hawkins decision, but especially by the way it was reached in secret, excluding from comment those most affected by it, and without the council having anything approaching the necessary knowledge of the consequences and legalities.  Fueling that anger is the big lie perpetuated by several councilpersons that the council was heroically acting to save "hundreds of thousands of dollars" in attorney fees pursuing an appeal that could simply been dropped.

 

It is extremely unlikely that my words will have any affect at all on the any councilperson's opinions with regard to the Hawkins matter.  It may even go unread by certain councilpersons or all of them.  I have, however, a very faint, miniscule hope that, perhaps only subliminally, a tiny civics lesson has been imparted to one or two of the council.

 

 

Wayne A. Fox
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